Maun v. Edgemont at Tarrytown Condo.

• Court: New York Supreme Court — Appellate Division
• Citation: Maun v. Edgemont at Tarrytown Condo., 156 A.D.3d 873, 67 N.Y.S.3d 660 (N.Y. App. Div. 2017)
• Decision Date: 27 December 2017
• Docket Number: 2015–07062,Index No. 51584/11
• Parties: Mary Ellen MAUN, appellant, v. EDGEMONT AT TARRYTOWN CONDOMINIUM, et al., respondents, et al., defendants.

156 A.D.3d 873

67 N.Y.S.3d 660

Mary Ellen MAUN, appellant,

v.EDGEMONT AT TARRYTOWN CONDOMINIUM, et al., respondents, et al., defendants.

2015–07062

Index No. 51584/11

Supreme Court, Appellate Division, Second Department, New York.

Argued–October 4, 2017

December 27, 2017

Bantle & Levy LLP, New York, N.Y. (Lee F. Bantle and Sherie Buell of counsel), for appellant.

Alan B. Brill, P.C., Suffern, N.Y. (Sheila S. Rosenrauch of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for libel and for housing discrimination in violation of the New York State Human Rights Law ( Executive Law § 296 ) and the Administrative Code of Westchester County, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), dated July 7, 2015, as granted those branches of the defendants' motion which were for summary judgment dismissing the first, fifth, and sixth causes of action insofar as asserted against the defendants Edgemont at Tarrytown Condominium, Edgemont at Tarrytown Condominium Association, Edgemont at Tarrytown Condominium Board of Managers, and Steve Gosset.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, the condominium in which she lived, the condominium association, its board of managers, and Steve Gosset, a board member, alleging, inter alia, that they had discriminated against her in furnishing services in relation to her condominium unit because of her sexual orientation in violation of the New York State Human Rights Law ( Executive Law § 296[5][a][2] ) and the Administrative Code of Westchester County § 700.05. The plaintiff also alleged that Gosset had defamed her in an email to the Tarrytown Village Administrator in which he stated that the plaintiff had taken video images of a neighbor's children and that the neighbor was concerned about how the plaintiff would use the video. The defendants moved for summary judgment dismissing the amended complaint, and in the order appealed from dated July 7, 2015, the Supreme Court granted the motion. The plaintiff appeals from so much of the order as granted summary judgment dismissing her first and fifth causes of action, which were to recover damages for violations of the New York State Human Rights Law and the Administrative Code of Westchester County, respectively, and her sixth cause of action, which was to recover damages for libel, insofar as these causes of action are asserted against the defendants Edgemont at Tarrytown Condominium, Edgemont at Tarrytown Condominium Association, Edgemont at Tarrytown Condominium Board of Managers, and Gosset (hereinafter collectively the defendants).

Contrary to the defendants' contention, they are not entitled to the protection of the business judgment rule with respect to the causes of action alleging violations of the New York State Human Rights Law and the Administrative Code of Westchester County. "The business judgment rule is a common-law doctrine by which courts exercise restraint and defer to good faith decisions made by boards of directors in business settings" ( 40 W. 67th St. v. Pullman, 100 N.Y.2d 147, 153, 760 N.Y.S.2d 745, 790 N.E.2d 1174 ). "In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination ‘[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith’ " ( id. at 153, 760 N.Y.S.2d 745, 790 N.E.2d 1174, quoting Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538, 554 N.Y.S.2d 807, 553 N.E.2d 1317 ). Here, the plaintiff alleges unlawful discrimination by the defendants, which is inherently "incompatible with good faith and the exercise of honest judgment" ( 40 W. 67th St. v. Pullman , 100 N.Y.2d at 157, 760 N.Y.S.2d 745, 790 N.E.2d 1174 ). Accordingly, the business judgment rule is not applicable (see id. ; Fletcher v. Dakota, Inc., 99 A.D.3d 43, 50, 948 N.Y.S.2d 263 ).

Nonetheless, the Supreme Court properly granted those branches of the defendants' motion which were for...